New bill would tighten rules for DHS border laptop searches

After a public outcry about no-reason-needed searches of laptops and …

Customs and Border Patrol agents can grab your laptop, BlackBerry, or external hard drive without needing so much as a reason, but a new bill introduced last week to Congress would at least put some limits on how border searches could be done.

"I was deeply concerned to learn about the lack of protections individuals' have when their electronic equipment is randomly seized," said Rep. Loretta Sanchez (D-CA), who introduced the bill. "With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information."

Note what her bill will not do—make searches more difficult. Earlier this year, the Ninth Circuit Court of Appeals found that border searches of electronic devices (even those without any probably cause) did not run afoul of the Fourth Amendment's unreasonable search and seizure clause. Judges noted that precedent already allows searches of 1) briefcases and luggage, 2) a purse, wallet, or pocket, 3) papers found in pockets, and 4) pictures, films, and other graphic material. So why not laptops?

While such searches would not appear to be legal within the country, courts have long recognized the government's right to "protect its territorial integrity" by controlling the material passing across its borders.

Sanchez's bill would bring more routine to the search process. The bill requires the government to draft additional rules regarding information security, the number of days a device can be retained, receipts that must be issued when devices are taken, ways to report abuses, and it requires the completion of both a privacy impact study and a civil liberties impact study. Travelers would also have the explicit right to watch as the search is conducted.

Sanchez also wants data about the searches, which would have to be turned over to Congress once per quarter. Specifically, she wants to know how many searches are being done, where they take place, and the race and nationality of those being searched.

The Department of Homeland Security actually issued search rules over the summer; while they were the first rules made public on the process, which had started to look quite ad-hoc, they still came in for criticism from groups like the Association of Corporate Travel Executives. ACTE, which doesn't like have executive laptops pinched whenever someone travels overseas, complained in early August that devices could basically be kept indefinitely, the data could be shared with foreign governments, and no data destruction procedures were spelled out.

Coming so close to the end of this Congressional session, Sanchez's bill is unlikely to see action this year. It currently sits in the House Committee on Homeland Security, where it will likely expire when Congress adjourns.

Given the tremendous uncertainty the electronic search process creates for travelers, 40 civil liberties groups asked Congress back in May to hold hearings on the issue; so far, that has yet to happen, but Ars has spoken with several frequent travelers who already that precautions with sensitive corporate and personal data before going on international trips.

Perhaps the laptop search program will turn out to be as much of a boon for online data repositories as it will for the federal government.